Sen. Kay Bailey Hutchison acts to ease path for Trinity Parkway

The city of Dallas wants the controversial Trinity Parkway built
between the aging Trinity River levees - even if it takes an act of
Congress to do so.

At the city's request, Sen. Kay Bailey Hutchison has inserted
two provisions into an unrelated spending bill that would exempt
the Trinity River parkway and the larger Trinity River Corridor
Project from federal laws that could otherwise prevent the road's
construction between the levees.

The legislation is in direct response to warnings by the U.S.
Army Corps of Engineers that it may declare the entire Trinity
River levee system - including the earthen dikes, pumping stations
and other flood-control features - "historic" under the National
Historic Preservation Act.

Such a designation, federal highway officials have acknowledged,
would make it extremely difficult for the Federal Highway
Administration to approve any path for the toll road that would run
between the levees, thanks to federal environmental laws that are
especially strict for transportation projects.

Dallas City Manager Mary Suhm said Tuesday that the historic
designation could slow other work, as well, including efforts to
restore the levees' integrity in time to prevent the Federal
Emergency Management Agency from issuing new flood risk maps for
Dallas. The city expects to spend up to $150 million to improve the
levees so they can be newly certified to protect against a
so-called 100-year flood before 2011. That's when FEMA expects to
issue the maps, which determine what residents and businesses in
various parts of the city pay for flood insurance.

"It was a concern," Suhm said of the possible historic
designation. "It could have delayed the levees fix and caused
premiums behind the levees to go up - and delayed mitigation of the
danger of flooding identified by corps."

A Hutchison aide said safety was the Republican senator's prime
concern.

"This is first and foremost a public safety issue," said Lisette
Mondello, a senior adviser to Hutchison. "If there were to be
additional delays ... the residents and business around downtown
Dallas would be forced to acquire flood insurance at a cost of
millions annually."

But the primary impact of a historic designation, which the
corps said Tuesday it is still considering, would be on the toll
road, not on the flood control work. Federal law makes it
relatively simple for the corps to navigate around the designation,
but the federal highway agency has much less discretion.

Kevin Craig, the corps' manager for the Trinity River project,
said the designation would require the corps to coordinate with the
Texas Historical Commission, but doing so would not slow the flood
control work to any appreciable degree.

"Honestly, I don't see that is the case," Craig said. "We don't
anticipate [historic designation] would delay or stop the work
required for the 100-year improvements."

Riders added

The two provisions, known as riders, are brief additions to the
Senate version of a lengthy defense-spending bill that had passed
both houses of Congress this spring.

The Dallas-related language was added only to the Senate
version, though Suhm said the city has consulted with Rep. Eddie
Bernice Johnson, D-Dallas, as well.

Next, the two versions must be reconciled in a conference
committee before the bill becomes law.

The first Hutchison provision would give the corps permission to
proceed with its environmental assessment of the Trinity River
Corridor Project without the usual requirement that it determine
whether structures or places affected by its project should be
considered historic.

That would essentially stop its consideration of whether the
levees are eligible for historic designation.

The second rider would simply create a special exception to
federal law for the Trinity River toll road.

The highway agency must decide where, if anywhere, the Trinity
toll road can be built. It is reviewing a number of remaining
potential routes, including one option between levees heavily
favored by the city.

But if the levees are deemed historic, federal law would require
the agency to pick a route that does not impact the levees, unless
no feasible alternative exists.

To avoid that restriction, the second rider would simply exempt
the highway agency from complying with that law for the Trinity
River project.

'Not appropriate'

"This is questionable on all fronts," said David R. Conrad, a
senior water resources specialist with the National Wildlife
Foundation in Washington. "It's just not appropriate to sidestep
major environmental laws in an emergency appropriations process.
When this came up, I started to get questions from all around
Washington. ... It raised concerns immediately because it would
waive major environmental and historic preservation laws."

Craig declined to criticize the move to exempt the Dallas
projects.

"We will comply with the law as it written, and if it is
amended, we will comply with the law then, too," he said.

A spokesman for Mayor Tom Leppert said he supported the
legislation.

"Mayor Leppert was aware that city staff had discussed this with
the senator's office," said chief of staff Chris Heinbaugh. "The
mayor supports any reasonable solution that will help the city get
the levee repairs completed quickly and he knows that flood safety
is in the forefront for both Senator Hutchison and Representative
Johnson."

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